C.H. Assainar v. Regional Transport Officer, Kannur and State Bank of India

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY,THE 06TH DAY OF SEPTEMBER 2018 / 15TH BHADRA, 1940** ## **WP(C).No. 28187 of 2018** ## **PETITIONER:** **C.H.ASSAINAR AGED 57 YEARS S/O MUHAMMAD, H NO.4/953, CHEEKINTE HOUSE, KANDOTH P O, PAYYANNUR, KANNUR DISTRICT** **BY ADV. SRI.M.V.AMARESAN** ## **RESPONDENTS:** **1 REGIONAL TRANSPORT OFFICER, KANNUR PIN-670001 ADDL. THE MANAGER R2 STATE BANK OF INDIA, PAYYANNUR. (ADDL.R2 IMPLEADED AS PER ORDER DATED 03/09/2018 IN IA.NO.1/2018).** **BY ADVS.** **SRI.K.P.HARISH, SR.GOVERNMENT PLEADER SRI.S.EASWARAN, SC, SBI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)No.28187 of 2018** ## **:-2-:** ## **J U D G M E N T** The petitioner, who is a stage carriage operator on the route Payyannur Railway Station to Kozhichal, in respect of stage carriage bearing registration No.KL-59/F-5599, covered by Ext.P1 regular permit, which was valid till 31.8.2018, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent Regional Transport Officer to renew Ext.P1 permit, as sought for in Ext.P3 application dated 3.8.2018, without insisting NOC from the 2[nd] respondent financier. 2. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for the 1[st] respondent Regional Transport Officer and also the learned Standing Counsel for the 2[nd] respondent financier, namely, the State Bank of India. ## **W.P.(C)No.28187 of 2018** ## **:-3-:** 3. The pleadings and materials on record would show that the petitioner purchased stage carriage bearing registration No.KL-59/F-5599, after availing finance from the 2[nd] respondent financier. The period of validity of Ext.P1 stage carriage permit expired on 1.9.2018. The petitioner made Ext.P2 request dated 6.8.2018 before the 2[nd] respondent financier seeking NOC to renew Ext.P1 permit. The said request was turned down by the 2[nd] respondent by making an endorsement to that effect on Ext.P2. Enclosing Ext.P2, the petitioner made Ext.P3 application before the 1[st] respondent, which is now pending consideration before the said respondent. 4. Learned Standing counsel for the 2[nd] respondent financier would contend that since the loan account has been classified as a non performing asset, the said respondent has not ## **W.P.(C)No.28187 of 2018** ## **:-4-:** granted NOC, as requested by the petitioner in Ext.P2 application. 5. In **Shabu Sukumaran v. Regional Transport** **Officer, Tvm and others [2018 (2) KHC 470],** after referring to the provisions under Section 51 of the Motor Vehicles Act, 1988 this Court held that even in a case in which the financier has objected renewal of the permit, the Registering Authority has discretion to renew the permit, after affording the applicant an opportunity of being heard. Paragraphs 4 to 6 of the said decision read thus; “4. Section 51 of the Motor Vehicles Act (hereinafter referred to as 'the Act' for short) deals with special provisions regarding motor vehicle subject to hire purchase agreement. Sub-section (6) of Section 51 provides that the registered owner shall, before applying to the appropriate authority, for the renewal of a permit under section 81 or for the issue of duplicate certificate of registration under sub-section (14) of Section ## **W.P.(C)No.28187 of 2018** ## **:-5-:** 41, or for the assignment of a new registration mark under Section 47, or removal of the vehicle to another State, or at the time of conversion of the vehicle from one class to another, or for issue of no objection certificate under Section 48 or for change of residence or place of business under Section 49, or for the alteration of the vehicle under Section 52, make an application to the person with whom the registered owner has entered into the said agreement of hire purchase (such person being referred to as the financier) for the issue of a no objection certificate. Subsection (7) of Section 51 provides that within seven days of the receipt of an application under sub-section (6), the financier may issue, or refuse, for reason which shall be recorded in writing and communicated to the applicant, to issue, the certificate applied for, and where the financier failed to issue the certificate and also fails to communicate the reasons for refusal to issue the certificate to the applicant within the said period of seven days, the certificate applied for shall be deemed to have been issued by the financier. 5. Sub-section (8) of Section 51 provides that ## **W.P.(C)No.28187 of 2018** ## **:-6-:** the registered owner shall, while applying to the appropriate authority for the renewal of any permit under Section 81, or for the issue of a duplicate certificate of registration, under sub-section (14) of Section 41, or while applying for assignment of a new registration mark under Section 47, submit with such application the certificate, if any, obtained under sub-section (7) or, where no such certificate has been obtained, the communication received from the financier under that sub-section, or, as the case may be, a declaration that he has not received any communication from the financier within the period of seven days specified in that subsection. As per Clause (a) of sub-section (9) of Section 51, on receipt of an application for the renewal of any permit or for the issue of duplicate certificate of registration or for assignment of a new registration mark in respect of a vehicle which is held under the said agreement, the appropriate authority may, subject to the other provisions of this Act, in a case where the financier has refused to issue the certificate applied for, after giving the applicant an opportunity of being heard, either ## **W.P.(C)No.28187 of 2018** ## **:-7-:** renew or refuse to renew the permit or issue or refuse to issue the duplicate certificate of registration or assign or refuse to assign a new registration mark. 6. The provisions under sub-section (9) of Section 51 of the Act would make it explicitly clear that even in a case in which the financier has objected the renewal of permit, the registering authority has the discretion to renew the permit, after affording the applicant an opportunity of being heard. Therefore, merely for the reason that the financier has refused to issue the certificate applied for under sub-section (7) of Section 51, the registering authority cannot reject an application made for renewal of contract carriage permit, in a mechanical exercise of power. Since certain discretion has been vested with the registering authority, in view of the provisions under sub-section (9) of Section 51 of the Act, the registering authority has to apply its mind to the objections, if any, raised by the financier and take an appropriate decision as to whether despite such objections of the financier, the applicant is entitled for renewal of permit.” ## **W.P.(C)No.28187 of 2018** ## **:-8-:** Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of by directing the 1[st] respondent to consider and pass appropriate orders on Ext.P3 application made by the petitioner for renewal of Ext.P1 regular permit, with notice to the petitioner and also to the 2[nd] respondent financier, after affording them an opportunity of being heard, taking note of the law laid down by this Court in **Shabu Sukumaran's case** ( **supra** ). A decision in this regard shall be taken, as expeditiously as possible, at any rate within a period of one month from the date of receipt of a certified copy of this judgment. Sd/- **ANIL K.NARENDRAN JUDGE** ami/10.9.18 ## **W.P.(C)No.28187 of 2018** ## **:-9-:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF STAGE CARRIAGE PERMIT BEARING NO P.ST.13/2043/2013 EXHIBIT P2 TRUE COPY OF REQUEST DATED 6.8.2018 SUBMITTED BY THE PETITIONER BEFORE THE STATE BANK OF INDIA, PAYYANNUR EXHIBIT P3 TRUE COPY OF APPLICATION DATED 3.8.2018 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT.** **EXHIBIT P4 TRUE COPY OF ACKNOWLEDGMENT RECEIPT DATED 3.8.2018 //TRUE COPY// P.A.TO JUDGE** **ami/**